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Constitutional Law II
UMKC School of Law
Kobach, Kris W.

Hierarchy of Constitutional Arguments:

Text – direct
Text – indirect
Originalist Intent
Constitutional Policy (works better this way, may be switched with three)
Public Policy (this law is good/bad)
Public Values

Reasons why we have a Constitution:

Create and Define the Institutions of Government
Define and Delineate Government Power → confer power on Institutions
Constrain Government Power by (1) Defining the scope of power, and (2) Enumerating individual Rights

Power of the constitution comes from the people à but really spoken through convention delegates
THE ROLE OF THE COURTS
I. Early Beginnings – 1787 Constitutional Convention
a. 1781 – Articles of Confederation were put in place
i. More similar to the European Union
ii. Relied on voluntary tax contributions from the States
b. Dec. 1786 – 5 commissioners from 5 states meet at a state house in Annapolis
i. Propose Amendments to strengthen the confederacy
ii. Went back to Congress to get authority to have a larger convention
c. 1787 – Congress was persuaded to hold a Convention (12 states send delegates)
i. Convention was supposed to examine the Articles of Confederation called by Madison
ii. Ended up Scraping the whole damn thing and starting fresh
II. Constitution of 1787 – end-run around state power of the time (individual state governments did not ratify the document)
a. As Conceived at the time…Federalist Papers envision of government that is extremely limited in power and scope
i. Would have its own taxing authority
ii. Supremacy Clause of Art VI (didn’t claim an area of authority, did not create any criminal authority)
b. Doctrine of Enumerated Powers
i. Federal Government can only exercise powers specifically granted and enumerated to it in the Constitution’s text and can’t use any other no matter how tempting
ii. Everything not expressly enumerated resides with the states (who Madison claimed no Bill of Rights was necessary b/c Federal Government could only exercise power expressly enumerated)
c. Residual/Inherent Powers
i. State government are free to act at will so long as they don’t bump up against a federal right
ii. Everything not expressly enumerated resides with the state governments
d. Separation of powers between 3 branches
i. Was a French and English idea
ii. Separated b

IV. Early Conceptions of Judicial Review
a. Nothing in the Constitution gives the Supreme Court the power to rule on the constitutionality of acts of Congress or state statutes, nor the power to review the decisions of state courts
b. Supremacy Clause (Art. VI) resolved potential conflicts between states and the federal government
c. Art. III creates the Supreme Court and extends judicial powers to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treatises made…under their authority.”
d. Disadvantages of Judicial Review
i. Judges will misconceive their responsibility and begin to legislate
ii. Who guards the guardians
iii. If we completely defer to the Justices as referees then judges will fix constitutional deficiencies and other branches will cease checking themselves
iv. Judges will not properly legislate (weak argument)
Marbury v. Madison (1803) – BIRTH OF JUDICIAL REVIEW